Washington — During a recent session, Justice Neil Gorsuch of the Supreme Court expressed apprehension about the way two significant cases had made their way to the court.
The cases in question involved the Biden administration's interactions with social media companies and the availability of a commonly used abortion pill. Both cases reached the Supreme Court after federal district courts issued nationwide orders that prevented federal agencies from carrying out specific actions.
In the social media case, a judge in Louisiana prohibited certain White House and administration officials from communicating with social media companies. In the abortion case, a judge in Texas halted the Food and Drug Administration's approval of the drug mifepristone from 2000 — a decision that was later overturned by a federal appellate court. The judge also blocked a series of actions taken by the agency to simplify access to the drug.
A surge of broad injunctions
Referred to as nationwide or universal injunctions, these expansive orders prevent the government from enforcing the policy in question against anyone, anywhere in the country, and go beyond what is necessary to protect the plaintiffs who filed the lawsuits. Justice Gorsuch seemed troubled by this trend, noting a recent "surge" in such injunctions.
"This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action," he said.
Gorsuch's observations were hardly new — he expressed dismay about these injunctions in a 2019 concurring opinion — and he's not the only justice to question the soundness of these broad orders. But Gorsuch's refrains reflect the uptick in nationwide injunctions imposed by district court judges over the past few years in response to court fights over hot-button policies.
"Rather than having what you might think of as a functional judicial process where if you do have important, unsettled controversial issues, the courts can give it appropriate time and consideration, you have everybody's rights throughout the nation being flipped on and off like a lightswitch," said Michael Morley, a law professor at Florida State University who has written about nationwide injunctions.
A study published Wednesday in the Harvard Law Review looked at the number of these injunctions issued since 1963, and found they spiked in the four years former President Donald Trump was in office.
Building on a dataset from the Justice Department, researchers identified at least 127 nationwide injunctions issued from 1963 through 2023. Of those, 96 have been entered since 2001, and more than half, 64, blocked the Trump administration from enforcing or implementing its policies.
Nationwide Injunctions and Judicial Power
When it comes to the impact of lower court judges on presidential policies, it's not just Republican presidents who face hurdles in the early stages of litigation.
An analysis in the Harvard Law Review revealed that federal judges issued 14 nationwide injunctions against the Biden administration's policies by the end of his third year in office. This number is comparable to the 12 injunctions entered against initiatives under former President Barack Obama. In contrast, during former President George W. Bush's tenure, only six nationwide injunctions were issued.
The Issue of "Extreme Forum Shopping"
According to the study, the power of a single judge to issue a nationwide injunction creates an environment of "extreme forum shopping." This practice involves plaintiffs strategically selecting a specific court and judge who are likely to be most sympathetic to their arguments.
Professor Morley, who conducted the study, noted that this phenomenon leads to cases involving controversial constitutional issues being resolved by judges who may not represent a diverse range of judicial perspectives.
The examination of nationwide injunctions highlighted in the Harvard Law Review revealed that 92% of such injunctions during the Trump administration were issued by judges appointed by Democratic presidents. Under the Biden administration, this number rose to 100%, with all nationwide injunctions being imposed by judges appointed by Republican presidents.
"If you see that kind of pattern, it cannot help but call the judiciary into disrepute," said Nicholas Bagley, a law professor at the University of Michigan. "It doesn't look like they're applying the law in a clear way. It will erode the judiciary's legitimacy, no question about it."
Bagley, who testified before the Senate Judiciary Committee about these injunctions in 2020, pointed to one key factor behind their rise: Politics.
Courts have over the past few years become the arena for hashing out high-profile political disputes, as congressional gridlock puts pressure on the president to take executive action to implement his policy agenda, Bagley said.
When presidents try to act unilaterally in "unusual or aggressive ways," he continued, "there's a ripe opportunity for a lawsuit, and if you're bringing one of these lawsuits, you're going to do your damndest to bring it in front of a friendly forum."
A judge who is more receptive to the challengers' arguments, he said, may come to see a nationwide remedy as the more appropriate means of reining in a president.
"It's a combination of a bunch of factors coming together: congressional sclerosis, presidential adventurism and judicial excessiveness," Bagley said.
Fight over the abortion pill
In the ongoing legal battle surrounding the abortion pill, a far-reaching order issued by U.S. District Judge Matthew Kacsmaryk sought to impose stricter regulations on the use of mifepristone for individuals seeking medication abortions. These rules included limiting the providers authorized to prescribe the pill, mandating earlier administration in pregnancy, and reversing an FDA regulation that permitted mail dispensing.
While the U.S. Court of Appeals for the 5th Circuit supported a portion of Judge Kacsmaryk's order, the Supreme Court stepped in to maintain the FDA's more relaxed guidelines for the distribution of mifepristone. The Supreme Court is currently evaluating the legality of these regulations and considering whether the anti-abortion physicians who initiated the case have the standing to sue.
During recent arguments before the Supreme Court, Justices Gorsuch and Ketanji Brown Jackson raised concerns about the breadth of relief sought by Kacsmaryk's order. A final decision on the matter is anticipated before the end of June.
"The physicians and medical associations are essentially asking that access to this medication be restricted for everyone, just to shield themselves from certain procedures," remarked Justice Jackson regarding the case.
She pointed out a significant disparity between the alleged harm claimed by the anti-abortion physicians and the remedy they are pursuing from the Supreme Court, which is the reinstatement of stricter mifepristone regulations for all individuals.
Government Influence on Social Media Regulation
In a recent development, a U.S. District Judge Terry Doughty has taken steps to limit government pressure on social media companies. This decision comes in response to the Biden administration's efforts to push these platforms to remove content deemed as misinformation.
During the legal proceedings, Judge Gorsuch pointed out a concerning trend of frequent injunctions in similar cases. He emphasized the importance of tailoring remedies to the parties directly involved in the dispute.
These cases, reaching the Supreme Court swiftly, have raised concerns about the limited opportunity for lower courts to address complex legal issues. This rushed escalation to the highest court impedes the thorough examination of facts and laws by other judicial bodies.
Legal expert Bagley criticized this trend, highlighting its disruption to government operations and the broad authority granted to individual judges. The current approach appears to hinder a balanced and effective regulatory framework for social media governance.
The debate over nationwide injunctions reaches the Supreme Court
In a recent development, Justice Clarence Thomas has joined Justices Gorsuch and Jackson in expressing concerns about nationwide injunctions. Thomas, in a 2018 concurring opinion related to Trump's travel ban, questioned the authority of district courts to issue such injunctions.
While the Supreme Court has yet to directly address the legality of nationwide injunctions, experts believe that the issue may need to be resolved in the future when the right case presents itself.
Potential legislative solutions
Congress has the power to address the issue, and two bills introduced by Democrats aim to tackle the practice of single judges issuing nationwide injunctions. One bill proposed by Sen. Mazie Hirono would require cases seeking broad injunctive relief against federal laws to be heard in the federal district court in Washington, D.C.
Another bill, led by Rep. Mikie Sherrill, suggests that civil suits seeking nationwide orders should be filed in district courts with at least two active judges.
However, the political landscape could complicate the passage of these measures.
In a recent statement, Morley argued that members of Congress tend to oppose executive orders when the president is from their own party, as they do not want a single district judge obstructing the president's agenda. However, when the president belongs to the opposing party, these same executive orders may appear more favorable.
